Law Commons^™

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Michigan Law Review Online

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first—the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than (as it …

Community Dignity Takings: Dehumanization And Infantilization Of Communities Resulting From The War On Drugs, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris

All Faculty Publications

In recognition of the dangers inherent to a regime that enables a majority of owners to terminate the individual property interests of a dissenting minority, the Strata Property Act requires that strata corporations secure court confirmation of dissolution votes. Not surprisingly, the shift to a lower dissolution threshold, the rapidly rising land values in British Columbia’s urban centres, and the increased costs of maintaining aging buildings, have precipitated a growing number of dissolution votes and a steady flow of applications to the British Columbia Supreme Court (BCSC) to confirm the votes.

The Power To Exclude And The Power To Expel, Donald J. Smythe

Faculty Scholarship

Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate …

One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The Court's most recent major property law case, Murr v. Wisconsin, 137 S. Ct. 1933 (2017), tackles one of the thorny, recurring issues in regulatory takings jurisprudence: what is the proper “denominator” to use in determining whether a government regulation has so greatly diminished the economic value of a parcel of land that it effects a taking? More specifically, Murr looked at what constitutes the “parcel as a whole” when a landowner holds title to two contiguous lots. Should a court assess the economic impact on the value of each lot separately or the impact on the value of the …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

Articles

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan

Donald J. Kochan

Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier

Maine Law Review

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …

Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu

Maine Law Review

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper, to …

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

Maine Law Review

Takings doctrine is a mess. Let's just accept that and establish specialized federal and state "takings courts" to adjudicate takings claims. Takings claims arise when governmental conduct is alleged to detrimentally affect private property. Adjudication of takings claims may initially seem straightforward: the Fifth Amendment's Just Compensation Clause, as well as analogous state constitutional provisions, plainly provide that the government shall not take private property for public use without just compensation. In 1978, the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. Decades later, in 2005, the Court abrogated a test for takings that it had …

Murr V. Wisconsin, Nathan A. Burke

Public Land & Resources Law Review

In Murr v. Wisconsin, the Court redefined how to determine private property for a regulatory taking under the Fifth Amendment. Previously, courts have primarily relied on state property principles to determine the relevant unit of property for a regulatory takings claim. However, in this case, the Court adopted a three-factor standard to determine the landowner’s reasonable expectations regarding the treatment of their property. By relying on these factors rather than only on state laws, the Court created a litigation-specific definition of property that could potentially differ from state property boundaries. The three-factor standard may also give the government an …

Written Testimony Of Gerald S. Dickinson For The U.S. Senate Hearing On Fencing Along The Southwest Border (Senate Committee On Homeland Security And Governmental Affairs), Gerald S. Dickinson

Testimony

It is with great pleasure that I submit this written testimony at the request of the Office of the Ranking Member, Senator McCaskill. I am pleased that the Homeland Security and Governmental Affairs Committee is devoting its April 4, 2017 hearing to an examination of efforts to secure the southwest border through the construction of a wall. Further, as a law professor who writes and teaches in the areas of constitutional property and land use, I take great interest in the committee's focus on the legal authorities related to the wall construction along the U.S.-Mexico border.

Insuring Takings Claims, Christopher Serkin

Christopher Serkin

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

The Illusion Of Fiscal Illusion In Regulatory Takings, Bethany R. Berger

American University Law Review

No abstract provided.

Public Stand-Off: The Wisconsin State Legislature V. Milwaukee Public Schools And Takings Of Public Property By Public Entities, Corey R. Hoze

Mitchell Hamline Law Review

No abstract provided.

Owning And Dissolving Strata Property, Douglas C. Harris

All Faculty Publications

Strata or condominium property creates multiple privately owned lots or units within an association of owners. Dissolving strata property involves winding-up the association and terminating the private interests. As a result, the non-consensual dissolution of strata property involves the taking of property from those owners who oppose dissolution. The owners of individual lots become co-owners of the land formerly within the association, but the non-consenting owners have their property interests in separate lots taken from them. Beginning with the observation that non-consensual dissolution of strata property results in a taking of property, this article analyzes British Columbia’s move to facilitate …

Partial Takings, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them. …

A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.

Insuring Takings Claims, Christopher Serkin

Northwestern University Law Review

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Is The Government Fiscally Blind? An Empirical Examination Of The Effect Of The Compensation Requirement On Eminent-Domain Exercises, Ronit Levine-Schnur, Gideon Parchomovsky

All Faculty Scholarship

We empirically test the fiscal-illusion hypothesis in the takings context in Israel. Israeli law allows local governments to expropriate up to 40 percent of any parcel without compensation. In 2001, the Israeli Supreme Court created a carve out for takings of 100 percent, requiring full compensation in such cases. We analyze data for 3,140 takings cases in Tel Aviv between 1990 and 2014. There was no disproportionate share of takings of just under 40 percent. Nor was there a long-term drop in the share of 100 percent takings after 2001. Although a short-term drop in the share of 100 percent …

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

Christine A. Klein

Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council -- the modern U.S. Supreme Court's seminal regulatory takings decision -- this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own -- forming what this Article calls the new …

When Scalia Wasn't Such An Originalist, Michael Lewyn

Scholarly Works

Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.

The Strange Career Of Private Takings Of Private Property For Private Use, Jan G. Laitos

Sturm College of Law: Faculty Scholarship

Part I summarizes the two private entities thattraditionally have been conferred the power to take private property for their own private use: (1) natural resource developers and (2) common carriers involved in, andresponsible for, our country’s transportation, storage, and distribution (TS&D) system for energy infrastructure—pipelines, electrical transmission lines, and rail lines. Part II considers the traditional rationale for those private takings, which typically relies on some version ofthe notion thatthe public atlarge may, or will, eventually benefit from this private exercise of eminent domain. Part III explores the four central problems associated with these kinds of private takings: (1) the …

A Solution In Search Of A Problem: Kelo Reform Over Ten Years, Wendell Pritchett

All Faculty Scholarship

Kelo is NOT Dred Scott. Kelo is not only NOT Dred Scott, it was, as this Essay will argue, the right decision given the facts of the cases and the current state of legal jurisprudence. As an academic who has detailed the historic exploitation of eminent domain to uproot persons of color in this country, I find it interesting, and somewhat troubling, that the case has received so much criticism, much more criticism, I would argue, than other Supreme Court decisions that deserve condemnation. Certainly, eminent domain, like any other government power, must be regulated carefully. But upending …

When Scalia Wasn't Such An Originalist, Michael Lewyn

Michael E Lewyn

Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright

Danaya C. Wright

After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW …

Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright

Danaya C. Wright

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, "[t]he right of way [200 feet wide] through the public lands of the United States." The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 …